A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest 

By Sandra and Joe Preston, 7th August 2025

In February 2025, we found ourselves stepping into the Court of Protection for the very first time, as relatives of a Protected Party (P).  We returned there in June for the second and final hearing, and although we came away with a positive outcome, it had taken over four years to reach this point.  We cannot help but question whether this was a good use of judicial time, tax-payers’ money and in the public interest. 

Here is our story which we can now tell, in our own names, following a successful application to the court to discharge the ‘standard’ transparency order and make a new one which “does not prevent the persons bound by this Injunction […] identifying Joseph and Sandra Preston as the son and daughter-in-law of [P]” (§8(i)(f), order of DJ Mullins, made on 10 June 2025 and issued on 20 June 2025).

Joe’s mother was diagnosed with Alzheimer’s in 2019, having been treated for depression after being widowed.  She continued to live in her own home with a good support network in place when Lockdown struck.  Unable to grasp that the country was in the throes of a pandemic which meant friends and family couldn’t visit, she found herself increasingly isolated and depressed.  This led to three failed suicide attempts within six months, the last of which resulted in doctors discharging her to a care home (a long way from where we live) on the grounds that living independently, even with a care package, posed too great a risk.

Fortunately, she had already put Lasting Powers of Attorney (for Finance and Property and for Health and Welfare) in place through her solicitor, and after three months in the care home to which she was discharged, we were able to transfer her to one local to us so that we could visit more often.  Covid was still prevalent at the time and she could not understand why we ‘abandoned’ her at the entrance, as she later went on to accuse us of having done, as we were not allowed to enter the care home and help her to settle in.  We were able to talk to her through the window: the care home did all they could to facilitate contact between residents and their families at a most difficult time.

“Deprivation of Liberty” and questions about a s.21a appeal:  May 2021-February 2023

A few months into her stay at this care home, she again tried to self-harm and on one occasion she tried to abscond from the garden, in the belief she could come and visit us at our house which we had reassured her was not far away.  The care home manager advised that she’d need to move to a more secure floor to reduce the risk of her leaving and being harmed.  This was the first time we heard about Deprivation of Liberty Safeguards. The first DOLS authorisation was issued in May 2021, valid for three months “to ascertain whether P’s behaviour constituted an active and consistent objection to her placement”.  She told the first Consultant Psychiatrist who visited her as part of the DOLS process that she was happy to stay at the care home with her current care and support and was assessed to have capacity to appoint Joe as her Relevant Person’s Representative (RPR).  Joe was never formally appointed RPR by the Supervisory Body (the London Borough of Waltham Forest); something we only recently discovered is a legal requirement.

Two months after the DOLS expired, a four-month authorisation was granted, still with Joe as RPR.  The DOLS stated the shorter time period was to allow her to receive input from local mental health services and for staff to monitor her for any evidence of an objection to her placement.

This expired in turn, and three months later, in May 2022, a two-month authorisation was granted to allow care home staff to gather a record of her views and behaviour, so that the Supervisory Body could form an opinion as to whether they amounted to an objection, something the Best Interests Assessor (BIA) felt he was unable to determine.  We were told that a Relevant Person’s Paid Representative (RPPR) would be appointed by the Supervisory Body as there was a conflict of interest with a family member taking on this role given that they supported the care home placement.  The RPPR would determine whether P’s occasional requests to go ‘home’ amounted to an objection and if deemed necessary, they would support her in lodging a Section 21a appeal through the Court of Protection.  The RPPR made one visit in July 2022, noting how settled she seemed to be at the care home and concluding that further work was needed to determine the precise nature of what she wanted to happen, given the inconsistencies between what she was reported to have said about wanting to live with Joe, and what she had told him, which was that she did not want to live with him.

In November 2022, four months after the latest DOLS had expired, and following a visit by a second Consultant Psychiatrist and a third BIA, it was recommended that a 16-week authorisation was adequate to facilitate a Section 21a appeal.  The Consultant Psychiatrist noted she was disorientated with time, place and person and had little insight into her illness or care needs.  Once appointed, the new RPPR visited her in January and February 2023.  In her report, the RPPR wrote that a S21a challenge would only have been raised had P continued to object to her placement, but that on her second visit no objections had been mentioned and she had left P happy, content and playing Bingo.  The DOLS expired with no S21a appeal having been lodged. 

A s.21A challenge to Deprivation of Liberty formally raised and laid to rest?  March 2023

But then, in March 2023, it looked as though a s.21a appeal was going to become a reality.  The next six-month authorisation was granted in March 2023 following a visit by yet another Best Interests Assessor (by now, this was No 4) who advised Joe that he could be the RPR, with a S39D IMCA appointed to help him lodge a S21a appeal.  His mother continued to say she wanted to go ‘home’ and couldn’t understand why she had to wait for someone to escort her to different areas of the care home.  We asked her where she meant when she said ‘home’ and she told us the name of the town where she had lived as a young child.  Her frustration at not being allowed to move around the care home unescorted led to her occasionally banging on windows and doors, which was noted in care home records.  We were not convinced that a S21a challenge was necessary – because Joe’s mother was safe, cared for and content at the care home.  We both believed her objections were to the situation she found herself in – with diminishing cognition, a feeling of being cooped up and having to wait for staff to escort her inside and out.  The only thing that caused her real distress was when someone from the Supervisory Body took it upon themselves to interrogate her as to where she would like to live.  This could unsettle her for days at a time.

The S39D IMCA gave us a list of law firms we could approach for help, but provided no guidance or support beyond this.    In an attempt to explore a more practicable, non-litigious way of resolving concerns about her liberty, we asked that a best interests meeting be convened with representatives from the DOLS team, the care home and relevant NHS bodies.  Before any such meeting took place, another Best Interests Assessor (No 5) visited and raised with her the issue of banging on doors and windows.  This latest assessor concluded that Joe’s mother did this simply when she wanted to go to the floor where activities she enjoyed were taking place.  We finally seemed to have found a BIA who took the time to try and understand the person, rather than relying on information which was distorted by being passed from one person to the next.  The BIA later informed us that the case had been reviewed by the S39D IMCA and they had concluded there was no need for a S21A challenge and the DOLS authorisation was extended to March 2024. 

We thought the S21a issue had been laid to rest and continued to visit Joe’s mother each week. Her cognition and speech were increasingly affected by the Alzheimer’s and it was becoming almost impossible to work out what she was trying to tell us or what she understood from our conversations.  She seemed settled and happy though, and it was clear she loved the staff and enjoyed the varied programme of activities and outings offered to the residents.  This was also evident in photos posted on social media by the care home.  We found visits challenging from an emotional perspective, as a little more of her disappeared each time we saw her, but we took great comfort from the fact she still recognised us (and still does).  The next Psychiatrist (No 3) and BIA (No 6) who visited her in May 2024 noted she lacked capacity to make decisions about where she should live, but both agreed she seemed happy and settled.

A decision to proceed with a s.21A Appeal: August 2024

It therefore came as a shock to receive a call from the DOLS Practice Manager in August 2024 telling us that because of the historical objections, a decision to proceed with a S21a challenge had now been taken and a third RPPR would shortly be appointed to take her case forward.  We were told that despite having LPAs in place, only the Court of Protection could determine whether she should continue to reside at the care home where she had been living since 2021, or whether she should be allowed to move back to her property (which had been sold to pay for her care home fees), or move in with us as she had allegedly told others she would like to do, or move to an alternative self-funded care setting proposed by the Local Authority.  

Joe’s mother had never once told us she wanted the matter to go to court and would be mortified if she knew, or could understand, that legal aid was funding advocates and solicitors to take her case to court.  We were made to feel like criminals because the Supervisory Body officials were unwilling or unable to provide a coherent explanation as to why the S21a process was necessary, other than citing ECHR obligations, and we could not understand what it was designed to achieve.  We certainly didn’t want our last days/weeks/months together taken up with Court of Protection and DOLS bureaucracy but instead to spend what precious time we may have left with her before the inevitable happens.  If we were simply to be dragged through the courts for a judge to opine that she was in the best and safest place, was this really an appropriate use of public funds?  If multiple psychiatrists had confirmed she lacked capacity and that her best interests were served by living in a care home, why did it need a judge to be paid a small fortune to reach the same conclusion as the medical experts?  We could not conceive of what alternative the judge might propose; we could not keep her safe by having her to live with us, nor could she keep herself safe were it to be suggested she could live independently in the community.  The stress this caused us cannot be put into words. 

It felt to us that the Supervisory Body were now on some sort of crusade.  The new RPPR made their first visit in late September 2024, followed by a visit in the company of the Official Solicitor’s representative in December 2024.  Their report of the visit records that Joe’s mother was unable to engage in meaningful conversation, seemed confused and disorientated to time and place and could not express her views and wishes around her current placement.  We could not help but ask each other whether this was the first time they had encountered someone with Alzheimer’s.  Despite hearing no objections from Joe’s mother about her placement, they chose to forge ahead with the S21a application.  We were informed on 21 January 2025 that it had been lodged with the Court of Protection and a first hearing set for early February.  We were also informed that the S21a challenge obligated the Local Authority to undertake a Needs Assessment under the Care Act 2014.  A Social Worker visited in March and concluded that Joe’s mother required 24-hour support and that her care needs were being met to a high standard at her current care home.  Finally we had found someone who agreed with us and we felt hopeful for the first time in a long while that common sense would prevail.

Court of Protection hearing: June 2025

Much to our relief, at the Court of Protection hearing in June, the judge approved an Order which determined that Joe’s mother should continue to reside at the care home where she had been living as happily as her condition would allow for the past four and a half years.  Nothing needed to change and there was nothing that could be done to make her life better. 

But what a long and protracted process it had turned out to be, with Joe’s mother having received no less than 23 visits from 16 different officials over four years. 

The Supervisory Body did submit to the Court of Protection that they wished to have on record that they recognised there had been too much delay in bringing proceedings, and that in hindsight the number of short-term authorisations was too great, which resulted in a number of professionals attending upon the protected party (Joe’s mother) which must have been unsettling.  They admitted that, with hindsight, it would have been right to ‘grasp the nettle’ of proceedings earlier.

The final approved order acknowledges that the protected party had been “subject to at least 9 short-term standard authorisations since May 2021” and that since April 2024 she had (according to her care records) shown “no signs by word or action of objections” to where she is living. The local authority acknowledged the family’s concerns “in respect of the delay in bringing these proceedings” and “apologises for the delays that were incurred“. The judge said that “a copy of this order shall be placed on [P’s] social care file and be provided to any Best Interests Assessor” and that “it shall accompany any future application to the Court of Protection“.

Transparency Order

To make matters worse, included in the bundle of documents we had been sent on 21 January 2025 in preparation for the court hearing, there was a Transparency Order which warned us that if we were ever to reveal our involvement in Court of Protection proceedings, we could be found guilty of contempt of court and may be sent to prison, fined or have our assets seized.  Over the course of four years we had obviously spoken to friends and family about our travails with the Local Authority in relation to Joe’s mother, and had often been asked whether the Court proceedings of which we had spoken were going ahead.  We were now deeply concerned that we’d be found to be in breach of the Transparency Order if we answered any of their well-meaning questions.

Having stumbled across the Open Justice in the Court of Protection website earlier in the year, and being unable to afford legal representation ourselves, we decided to approach Professor Celia Kitzinger for help.  Thanks to her support and timely interventions (she helped us to write the application and was then joined as a co-applicant in the case), we were able to get the Transparency Order discharged and replaced with a less draconian version, which allows us to speak and write openly about our experience, in our own names, something we very much want to do in order to offer support to others who find themselves in similar situations.  Furthermore, the Transparency Order no longer states that the restrictions remain in place “until further order of the court” but end with the death of the protected party. (Celia will be writing separately about her application to vary the Transparency Order.)

Reflections

In a podcast about the legal framework that underpins LPA and Deprivation of Liberty (https://speakforme.co.uk/podcast-episode-57),  Victoria Butler-Cole KC explains why it is very difficult to draw a clear line between the cases where you do need these protections and the cases where you don’t and why it’s safer to err on the side of caution and give the protection to everyone who might need it.  She acknowledges that S21a challenges do reach the Court of Protection where everything is fine and nothing needs changing and nothing can be done to make life better in terms of an individual’s care arrangements.  But from the perspective of caring family members caught up in a seemingly futile Court of Protection case, would it not make sense and spare the public purse and provide speedier justice if cases like ours could be sifted out long before they reach the judge’s bench?  The stress this causes to families like ours, who are doing the best they can in difficult and emotional circumstances, and who care about our relative far more than any of the officials ever will, should surely factor into decisions about which cases merit this level of scrutiny?  At the end of the day, nothing has changed for Joe’s mother as a result of her case coming before the judge.  Sadly, the same cannot be said for us.

Joe and Sandra Preston are the son and daughter-in-law of a P who was involved in Court of Protection proceedings.  They can be contacted through the project email on openjustice@yahoo.com.